Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-15-2008

Briceno Rodriguez v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-4748




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                                                               NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ___________

                                     No. 07-4748
                                     ___________

                     JULIAN ANDRES BRICENO RODRIGUEZ,
                                                Petitioner

                                           v.

                ATTORNEY GENERAL OF THE UNITED STATES,
                                                      Respondent
                   ______________________________ ______

                       On Petition for Review of an Order of the
                            Board of Immigration Appeals
                             (Agency No. A97-703-754)
                     Immigration Judge: Honorable Andrew Arthur
                    _______________________________________

                   Submitted Pursuant to Third Circuit LAR 34.1(a)
                                  October 15, 2008
              Before: BARRY, SMITH and HARDIMAN, Circuit Judges


                           (Opinion Filed: October 15, 2008)
                                      _________

                                       OPINION
                                      _________

PER CURIAM

       Julian Andres Briceno Rodriguez petitions for review of an order of the Board of

Immigration Appeals (“BIA”) dismissing his appeal from an order of the Immigration

Judge (“IJ”) denying his motion to reopen his removal proceeding. For the following
reasons, we will deny the petition for review.

                                              I.

       Petitioner is a native and citizen of Colombia. He arrived in the United States on a

tourist visa with permission to remain until December 2001. Petitioner overstayed, and

was placed in removal proceedings on that basis in 2007.

       On May 22, 2007, petitioner, represented by counsel, appeared before the IJ and

conceded removability. Petitioner had not at that point applied for asylum or any other

form of relief. At the hearing, the IJ asked petitioner’s counsel what forms of relief he

was seeking. Petitioner’s counsel responded that “my client doesn’t have any obvious

forms of immigration relief,” and explained that petitioner sought only permission to

voluntarily depart by August 7, 2007. (A.116.) Petitioner’s counsel further explained

that petitioner would voluntarily depart to Colombia but first wanted some time to put his

affairs in order and obtain certain paperwork that he believed would prevent his

conscription into the Colombian army before leaving the country. The IJ then questioned

petitioner directly. Petitioner testified that he was willing to voluntarily depart because he

“will have time to fix whatever things I have to do outside. And with that being said, then

I will go home because also, I will like to see my family.” (A.126.) The IJ granted

petitioner’s request and ordered him to voluntarily depart by August 7.

       On August 15, still in this country and represented by different counsel, petitioner

filed a motion to reopen with the IJ. Petitioner asserted that he now wanted to apply for



                                              2
asylum, withholding of removal and relief under the Convention Against Torture

(“CAT”), and argued that the IJ had failed to advise him that he could apply for such

relief. Petitioner asserted that he feared Colombian guerillas would kill or kidnap him on

return because he previously attended military school and his father is a police officer.

Petitioner did not argue that his fear was brought about by any changed country

conditions. The IJ denied petitioner’s motion, and the BIA affirmed.

                                              II.

       We have jurisdiction under 8 U.S.C. § 1252(a)(1) to review the BIA’s dismissal of

petitioner’s appeal from the IJ’s denial of his motion to reopen. See Rranci v. Att’y Gen.,

– F.3d –, No. 06-3327, 

, at *3 (3d Cir. Aug. 22, 2008). Because the

BIA issued its own opinion, we review the BIA’s decision rather than that of the IJ. See

the BIA’s ruling for abuse of discretion, and will disturb it “only if it was

‘arbitrary, irrational, or contrary to law.’” 

In applying that

standard, we review legal conclusions de novo and review factual determinations for

substantial evidence. See 

before the BIA, as he does here, that his proceeding should be

opened to allow him to apply for asylum, withholding of removal and relief under CAT

because (1) he has shown prima facie eligibility for relief and (2) the IJ’s failure to

explain his opportunity to apply for such relief left him “not able to explore the

possibilities of such relief” and that he thus “has not yet been afforded the opportunity” to



                                               3
present his claims. The BIA did not address whether petitioner had established a prima

facie case. Instead, it denied the motion on the ground that, under the circumstances, the

IJ did not have a duty to inform petitioner that he could apply for other forms of relief.

We agree both that the IJ had no such duty, see 8 C.F.R. § 1240.11(c)(1), and that this

rationale was an adequate basis on which to deny reopening, see Korytnyuk v. Ashcroft,

, 282 (3d Cir. 2005) (explaining that BIA may deny reopening when, inter

alia, the petitioner either has not established a prima facie case or “‘has not reasonably

explained his failure to apply for asylum initially’”) (quoting INS v. Abudu, 

,

105 (1988)).1

       As the BIA explained, the applicable regulation requires IJs to “[a]dvise the alien

that he or she may apply for asylum in the United States or withholding of removal,” but

only, inter alia, “[if] the alien expresses fear of persecution or harm upon return to any of

the countries to which the alien might be removed.” 8 C.F.R. § 1240.11(c)(1). The BIA

properly determined that neither petitioner nor his counsel said anything before the IJ




  1
     The BIA characterized petitioner’s argument as one that the IJ had denied him due
process. Petitioner himself, however, did not make that argument before the BIA and has
not made it here. Instead, he mentions only the regulation requiring IJs to inform
petitioners of potentially-available relief under certain circumstances, and sets forth the
IJ’s failure to do so merely by way of attempting to explain his own failure to apply for
relief before the IJ. Nevertheless, we note that “there is no constitutional right to be
informed of possible eligibility for discretionary relief,” Bonhometre v. Gonzales, 

, 448 n.9 (3d Cir. 2005), and that there was nothing in the record before the IJ
that might have required him, as a constitutional matter, to inform petitioner that he could
apply for withholding of removal or relief under CAT, see 

                                              4
remotely suggesting that petitioner feared persecution or harm if he returned to Colombia.

Quite to the contrary, counsel informed the IJ that petitioner had “no obvious forms of

immigration relief” and wanted to return to Colombia voluntarily. Petitioner himself

informed the IJ that he wanted to voluntarily return after putting his affairs in order so

that he could see his family. Under these circumstances, we agree that the IJ did not have

a duty to inform petitioner that he could apply for other forms of relief. Accordingly, the

BIA’s dismissal of petitioner’s appeal was not arbitrary, capricious, or contrary to law,

and his petition for review will be denied.2




  2
     The BIA also held that petitioner’s former counsel had not rendered ineffective
assistance. Petitioner has expressly disclaimed reliance on that theory in his brief before
this Court (as he had before the BIA), so we do not address that issue.

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